US Immigration Updates: What’s Happening Now

International Entrepreneur Parole (IER) is now in force – for what it’s worth

The current administration’s attempts to have the International Entrepreneur Rule (IER) delayed and ultimately scrapped – it was introduced by President Obama in August 2016 –was rejected by the US District Court, District of Columbia on December 1, 2017. The apparent victory for investors and foreign entrepreneurs may well be a pyrrhic one, considering United States Citizenship and Immigration Services’ (USCIS) own website message on the topic, posted in March 2018: While DHS complies with the court order and implements the IER parole program, DHS is also in the final stages of publishing a notice of proposed rulemaking seeking to remove the IER.(https://www.uscis.gov/humanitarian/humanitarian-parole/international-entrepreneur-parole).

By letter of April 4, 2018 to Senator Charles Grassley, USCIS stated that: Due to the court order which invalidated the IER delay rule, the International Entrepreneur Final Rule is now in effect. We have not approved any parole requests under the International Entrepreneur Final Rule at this time.(https://www.judiciary.senate.gov/imo/media/doc/2018-04-04%20USCIS%20to%20CEG%20-%20Buy%20America,%20Hire%20America%20update.pdf).

Suffice to say, we won’t be advising any of our clients to waste their time and money pursuing IER ‘at this time’ though we remain vigilant for any positive signs on IER’s future and will let everyone know if/as soon as we can safely report that it’s a real option. If you’re skeptical, you may want to skip to the next article.

The International Entrepreneur Rule offers “parole” to international investors who partner with American investors to create new businesses providing significant public benefit through the creation of new jobs and businesses in the U.S. To qualify, international entrepreneurs:

• must have established a U.S. start-up business within five years before the application for parole;

• must hold an ownership interest in the startup of at least 10 percent;

• must play an active and central role in the operations of the business, and not merely be an investor; and

• The start-up must have received a capital investment of at least $250,000 from qualified U.S. investors or at least $100,000 in grants or awards from qualifying U.S. federal, state or local government entities. International entrepreneurs who only partially satisfy the funding criteria would need to provide additional compelling evidence of the start-up’s substantial potential for rapid growth and job creation.

Under the proposed rule, a qualified international entrepreneur would be granted a 30-month period of stay, with the option to renew their status for an additional 30 months, if the following criteria are met:

• The business continues to operate;

• The international entrepreneur retains at least a five percent ownership interest and continues to play a central role in the business; and

• The business has:

  • Created at least five qualifying jobs;

  • Received at least $500,000 in qualifying investments, government grants or awards, or a combination thereof; or

  • Generated at least $500,000 of U.S. revenue and averaged 20 percent in annual growth during the initial parole period.

No more than three entrepreneurs may be granted parole per start-up entity and spouses of qualifying entrepreneurs may apply for work authorization. Moreover, the U.S. government retains the right to revoke the international investor’s parole if the business ceases to operate or be of benefit to the U.S. Entrepreneurs currently in the U.S. in a different visa category may apply for parole but, if approved, must leave the U.S. and request to be paroled on re-entry as it’s not possible to change status from another non-immigrant category to parole while remaining in the U.S. One downside is that the entrepreneur will be limited to working with the startup in question which, in reality, may have a stalling effect on innovation as in reality, entrepreneurs very often identify and create new opportunities wherever they happen to be.

Current EB-5 Investor Visa (Green Card) Program Extended until September 20, 2018

Many people are familiar with EB-5 green cards for investors for all the wrong reasons; high profile fraud schemes are frequently reported in the media and USCIS and SEC have issued warnings in the past, but the category remains a valuable one for eligible high net-worth individuals (and their qualifying dependents) who make the necessary investment in a commercial enterprise in the United States which can create or preserve 10 permanent full-time jobs for qualified U.S. workers. In March 2018, the new EB-5 Bill sought to increase investment amounts and reduce the number of available petitions, and included the following proposals:

• Increase the minimum investment amount from $500,000 to $925,000 or $1,025,000;

• Increase the application filing fee by $12,500;

• Decrease the number of visas available from 10,000 to 7,000; and

• Increase the number of jobs that must be created to 12.

However, on March 21, Congressional leaders released a 2232-page, $1.3 trillion bill for Fiscal Year 2018 with language extending the current EB-5 program until Sept. 30, 2018. While Congress failed to change the EB-5 visa program, the United States Citizenship and Immigration Services (USCIS) may issue new regulations to increase the investment amounts, since USCIS published such regulations in January 2017 and can implement them at any time. In the meantime, interested foreign investors are encouraged to file their EB-5 applications while the lower investment requirement remains at $500,000 for designated areas of high unemployment; and at $1M elsewhere: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-eb-5-visa-classification.

Trump Administration Moves to Require Visa Applicants to Provide Past Five Years of Social Media History

In a politically charged move, the White House has announced that it plans to require immigrants applying for admission to the U.S. to render five years of their Twitter, Facebook, and similar social media history for security reasons. The rhetoric stems from the administration’s focus on “extreme vetting” of would-be immigrants and is an extension of efforts to more closely scrutinize social media following the San Bernardino terrorist attack in 2015, when the authorities said they had missed signs of radicalization in messages on a messaging platform sent between the attackers. 

According to a State Department official, “such information is required to confirm identity or conduct more rigorous national security vetting.” Not surprisingly, not everyone takes that view; critics complain that the measure is drastically invasive when it comes to privacy and could have a chilling effect on free speech. The ACLU is “also concerned about how the Trump administration defines the vague and over-broad term ‘terrorist activities’ because it is inherently political and can be used to discriminate against immigrants who have done nothing wrong.” It’s worth noting that the proposal would not affect those from visa-waiver (ESTA) countries, including Ireland and the UK, but nationals of countries like India, China and Mexico could be affected when they visit the U.S. for business or holidays. On a practical level, it could also limit legal immigration to the U.S. by further backlogging already heavily burdened processes.

The public was given two months to comment on the proposal (from March 31^st) which – if ultimately approved by the office of management and budget (OMB) – will affect 14.7 million people per year; those visa applicants will be required to list all social media identities they have used in the past five years and provide passwords as well as five years of previously used telephone numbers and email addresses and their international travel history. Bear in mind that if you have travelled to or been present in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen at any time on or after March 1, 2011; and/or you are a dual national of Iraq, Syria, Iran, or Sudan, you will not be eligible for ESTA registration to use visa waiver:https://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq

In these circumstances, you’re required to apply for a B visa and are likely to have your application placed into ‘administrative processing’ which can take six months or more to wind its course; during this time, you cannot travel to the U.S.

Trump Administration Aims to Revoke Employment Authorization for spouses of H-1B visa holders

Since 2015, spouses of H-1B visa holders with pending Legal Permanent Resident (green card) applications are eligible to apply for employment authorization in certain circumstances; but in 2017, Donald Trump, through the “Buy American and Hire American” executive order, announced the administration’s intent to rescind the regulation, and by letter of April 4, 2018 to Senator Charles Grassley, USCIS re-stated this intention:https://www.judiciary.senate.gov/imo/media/doc/2018-04-04%20USCIS%20to%20CEG%20-%20Buy%20America,%20Hire%20America%20update.pdf

Spouses of H-1B visa holders are eligible to hold H-4 status solely based on their marital relationship, but, unlike spouses who hold dependent visas in other categories like L and E, H-4 spouses are not eligible to apply for U.S. employment authorization. In most marriages, both parties want to and/or need to work, so naturally, this restriction negatively impacts the ability of U.S. employers to attract foreign skilled workers (and that’s before we even mention the highly publicized and over-subscribed H-1B quota system). For H-4 spouses who are eligible for employment authorization, they may work with any U.S. employer (while the principal applicant is tied to the H-1B sponsoring company). 

Supporters of work authorization for H-1B spouses argue that it enables U.S. employers who have difficulty finding qualified U.S. citizens to more easily attract foreign qualified workers with career-minded spouses. Those who support the current administration’s intention to revoke this eligibility say that providing H-4 visa holders the option to obtain employment authorization represents a threat to American jobs (notwithstanding compelling evidence to the contrary).

Currently, USCIS requires more time to perform significant revisions to the draft proposal and to include the required new economic analysis and expects to provide the anticipated publication of the proposed rule in June 2018.